IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.39806/2014 c/w W.P.NO.29174/2014 (GM-CPC) IN W.P.NO.39806/2014: BETWEEN:
A.H.IBRAHIM S/O. LATE A.M. HASSAINAR AGED ABOUT 64 YEARS, PLANTER AND TIMBER MERCHANT, NAPOKLU VILLAGE, MADIKERI TALUK, KODAGU DIST. – 571 214 ...PETITIONER (BY SRI.S.R.RAVIPRAKASH, ADVOCATE) AND:
1. DR.T.C.SIDHAN (DECEASED) S/O. LATE T.S.CHATHUNNI, THEVALIL HOUSE, KANIMANGALAM, THRISSUR TOWN, KERALA STATE – 680027 2. MRS. UMADEVI NAMBIAR W/O. K.P.P.NAMBIAR AGED ABOUT 64 YEARS, KALLIASSERI VEEDU, NO.517, FIRM MAIN, 3RD BLOCK, RAJAMAHAL VILAS, STAGE 2, ANGALORE – 560 094 3. T.R.SANJAY S/O. LATE T.C.RAJAN, B-302, SALARAPURAI, SILVER WOODS, NO.15, VIRTHUR ROAD, NAGAVARAPALYA, C.V.RAMAN NAGAR POST, BANGALORE-560 03 4. MRS. ZAMEERA ANAND D/O. LATE T.C.RAJAN, 571, 1ST MAIN, 3RD BLOCK, RAJAMAHAL VILAS, STAGE II, BANGALORE – 560 094 5. MRS.T.C.VRINDA DEVI W/O. LATE SAHADEVAN, A/3, VRINDAVAN COLONY, GOLF LINK ROAD, CHEVAYUR, CALICUT, KERALA, PIN CODE-673017 6. DR. MAYA GOPINATH W/O.P.I.GOPINATH, PAWAKULATH HOUSE, ASAD ROAD, POST KALOOR, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT KEARALA PIN CODE-682017 ...RESPONDENTS (BY SRI.S.G.BHAGAVAN, ADV. FOR R-2 TO R-4; SRI.A.RAM MOHAN, ADV. FOR R-5 & R-6 R-1 DECEASED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO QUASH AND SET ASIDE THE ORDER ON I.A.No.2 DATED 19.04.2014 IN EXECUTION CASE NO.19/2011 ON THE FILE OF THE HON’BLE COURT OF THE SENIOR CIVIL JUDGE AT MADIKERI VIDE ANN-G.
IN W.P.NO.29174/2014: BETWEEN:
MRS. UMADEVI NAMBIAR W/O. K.P.P.NAMBIAR MAJOR, “KALLIASSERI VEEDU”, NO.517, FIRST MAIN, 3RD BLOCK, RAJAMAHAL VILAS, Ii STAGE, BANGALORE – 560 034 (BY SRI.S.G.BHAGAVAN, ADVOCATE) AND:
A.H.IBRAHIM S/O. LATE A.M. HASSAINAR AGED ABOUT 63 YEARS, PLANTER AND TIMBER MERCHANT, NAPOKLU VILLAGE – 571 218 (MADIKERI TALUK-KODAGU DISTRICT) (BY SRI S.R.RAVIPRAKASH, ADVOCATE) ...PETITIONER ...RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT QUASHING THE PROCEEDING IN EXECUTION NO.19/2011 PENDING IN THE COURT OF THE CIVIL JUDGE (SR.DN.) AT MADIKERI, KODAGU AS PER ANNEXURE-E.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matters are listed for Preliminary Hearing in ‘B’ Group by consent of learned Advocates appearing for the parties, they are taken up for final disposal.
2. Short points that arise for consideration in these writ petitions are:
(i) Whether the Executing Court adjudicating Execution No.19/2011 was justified in dismissing I.A.No.II filed by the decree holder under Section 50 of CPC?
(ii) Whether the execution proceedings in Ex.No.19/2011 requires to be quashed or set aside insofar as judgment debtor No.2 is concerned i.e., writ petitioner in W.P.No.29174/2014?
3. Petitioner in W.P.No.39806/2014, who is respondent in W.P.No.29174/2014, had filed a suit O.S.No.77/1998 against Sri. T.C.Sidhan and Smt.Umadevi Nambiar for recovery of `10,03,000/- with interest @ 12% p.a. contending interalia that first defendant’s wife and second defendant are sisters and the wife of first defendant late Smt.Rani Sidhan had received as advance a sum of `7,70,000/- from first defendant with an understanding that timber would be supplied to the plaintiff from Wadden ‘B’ Estate situated at Pollibetta, Madikeri and later on, said timber had been auctioned by the Court and as such defendants are liable to pay suit claim and said Smt. Rani Sidhan had confirmed liability to pay plaintiff and she is said to have died on 21.10.1996. For discharge of liability her husband/first defendant is said to have issued a cheque in favour of plaintiff for a sum of `5,00,000/- as part payment, which came to be dishonoured when presented and hence sought for recovery of the amount as prayed for in the plaint. Alleging there was a dispute between deceased Smt. Rani Sidhan and her sister (second defendant) with regard to inheritance of properties, she (second defendant) is also said to have been made party to suit.
4. During the pendency of said suit first defendant expired. On account of first defendant being issueless, application to bring the legal representatives of first defendant was not filed and a memo dated 10.12.2002 came to be filed seeking exemption to bring the legal representatives on record not on said ground, but on the ground that first defendant having been placed exparte. Said memo came to be allowed on 10.12.2002 and plaintiff was directed to bring the legal representatives of deceased first defendant. However, second defendant filed objections to the said memo, which memo came to be rejected on 07.07.2004 without observing the earlier order dated 10.12.2002 and with a direction to plaintiff to file necessary application under Order 22 Rule 4 CPC instead of memo. However, no such application was filed. Hence, trial Court observed that suit against defendant No.1 had stood abated. It is in this background, learned trial Judge while adjudicating the suit has observed vide paragraph 12 to the following effect:
“12. During the pendency of the suit, Defendant No.1 is abated. It appears that, that Order has been made without knowledge of the previous Order on Memo. On considering the evidence of PW.1 and cross-examination made on behalf of Defendant No.2 reveals that, the Defendant No.1 died without issues. As such, matter is pending before Kerala High Court regarding succession of the properties of deceased. It appears that, the Defendant No.1 died without leaving any heirs. In case of non-leaving any heirs by the deceased and remained exparte in the suit during his life time, whether Court can exempt from bringing Legal Representatives of deceased under Order XXII Rule 4 Civil Procedure Code and can set aside the subsequent Order by invoking the inherent power under Civil Procedure Code. As such, I have gone through the Karnataka amendment Order XXII Rule 4(4) Civil Procedure Code reads as follows:
“The Court whenever it thinks fit, may exempt the Plaintiff from the necessity to substituting the legal representative of any such Defendant who has been declared ex-parte or who has failed to file his written statement or who having filed it has failed to appear and contest at the hearing; and the Judgment may in such case be pronounced against the said Defendant not withstanding the death of such Defendant and shall have the same force and effect as if it had been pronounced before his death took place.”
This itself reveals that, when the Defendant No.1 was placed exparte and after his death, it need not necessary to bring his Legal Representatives on record by the Plaintiff and the Court can pronounce the Judgment against such Defendant not withstanding the death of such Defendant and shall have the same force and effect as if it had been pronounced before his death took place. Therefore, it is necessary to accept the previous Order passed by this Court by Order dated 10-12-2002. However, in subsequent Order, case has been abated against Defendant No.1. Whether Court can exercise inherent power to set aside the abatement Order suomoto for the reason that, the Legal Representatives of the deceased Defendant need not necessary to bring on record under Order XXII Rule 4 Civil Procedure Code as he is remaining exparte during his life time. As such, I have gone through the decision reported in 2001(4) Civil L.J.722 in case of Gulabeen and others Vs. Narendra Balchandra and others, wherein the Hon’ble High Court of Bombay held that, under Order XXII, Rule 4A Civil Procedure Code – Abatement of suit against deceased Defendant – Subsequently proved that deceased left no heirs and legal representatives – Order of abatement is not so sacrosanct or inviolable – Court competent to pass order to set aside the abatement on satisfaction regarding requirement of Rule 4A under its inherent powers and can proceed with the suit – Jurisdiction under Order XXII, Rule 4A rightly involved. Further in the same decision at Head-Note (A) the Hon’ble Court held that, Death of Defendant No.1 – No legal heirs and representatives left – Court can proceed in absence of person representing the estate of the deceased person. In view of the above principles laid down in the decision, the Court can now order for set-asiding the abatement passed by this Court on 07.07.2004 in pursuance of earlier exemption from brining Legal Representatives by order dated: 10-12- 2002 and that has been supported from the above decision. Hence, it is necessary to proceed against the Defendant No.1 as if he is alive to the extent of estate of deceased Smt.Rani Sidhan.”
5. Subsequently, suit came to be decreed against first defendant alone for a sum of `7,70,000/- with cost and simple interest @ 8% p.a. from 10.12.1995 till realization and suit filed against second defendant came to be dismissed.
6. In order to enjoy the fruits of the decree obtained, execution proceedings filed under Order 21 Rule 11 CPC in Execution No.19/2011 came to be initiated by decree holder. A specific plea also came to be raised in the execution proceedings by the decree holder that second judgment debtor has become entitle to the immovable properties of the deceased first judgment debtor and more particularly the properties described in the schedule to the execution proceedings as a heir to the judgment debtor and as such she would also be liable to indemnify the decree holder. Said application came to be resisted to by the second judgment debtor by filing detailed statement of objections and sought for dismissal of the execution proceedings, insofar as, proceedings initiated against her.
7. In the meanwhile, decree holder in the execution proceedings filed on interlocutory application under Section 50 CPC to implead respondent Nos.3 to 6 contending interalia that sisters of Sri.T.C.Sidhan had filed a suit O.S.No.99/2004 before the Subordinate Judge, Calicut, Kerala, for partition and separate possession against the second judgment debtor (Smt. Umadevi Nambiar) and others and a compromise had been entered into by them before the Hon’ble Apex Court in SLP (Civil) No.18434/2006 and second judgment debtor along with proposed judgment debtors 3 to 6 had paid a sum of `3 Crores to Mrs.T.C.Vrindadevi and Dr.Maya Gopinath namely, sisters of Sri T.C.Sidhan in full and final settlement of their claims and as such respondents-3 to 6 are necessary and proper parties to the execution proceedings and sought for proposed respondents being impleaded.
8. Said application opposed by proposed judgment debtors-3 to 6 by filing objections - Annexures-E & F which came to be adjudicated by the Executing Court and by impugned order dated 19.04.2014 said application came to be dismissed by arriving at a conclusion that properties of judgment debtor No.1 has come to the hands of judgment debtor No.2 and as such, as a legal representative, she is a necessary party to the execution petition. Hence, these two petitions have been filed by the decree holder insofar as rejection of I.A.No.2 is concerned by and by judgment debtor No.2 insofar as execution proceedings being continued or proceeded against her.
RE: POINT NOS.(1) & (2):
9. Insofar as necessary parties to the execution petitions are concerned, there cannot be any dispute to the proposition of law namely, Section 50 CPC read with Order 22 Rule 4 CPC (Karnataka Amendment) that original Court would be empowered to exempt the plaintiff from the necessity of substituting legal representatives of any such defendant who has been declared exparte or who has failed to file his written statement or who having filed written statement has failed to appear and contest the suit at the hearing and the judgment in such case can be pronounced against such defendant notwithstanding the death of such defendant and it shall have the same force as it had been pronounced before death took place. The maxim ‘Actio personalis moritur cum persona’ would be applicable only when a personal action is brought and such action dies with the death of the person but not in respect of where claim relates to the estate of the deceased as it has happened in the instant case. It is because of this precise reason, learned trial Judge while decreeing the suit has held that decree would be binding on the estate of the deceased Smt.Rani Sidhan represented by her husband Dr.T.C.Sidhan and he also having expired after the suit having been decreed. In the instant case, trial Court having categorically held that suit can be proceeded against defendant No.1 as if he would be alive to the extent of the estate of deceased Smt.Rani Sidhan, such persons stepping into the shoes of Dr.T.C.Siddan to represent his estate would also equally be liable to indemnify or satisfy the claim of the decree holder. In the instant case, decree holder claims that suit for partition had been filed in O.S.No.99/2004 by the sisters of Dr.T.C.Sidhan claiming to be the successon in interest to the estate left behind by Dr.T.C.Sidhan. In fact, this is also the statement made by decree holder in the affidavit filed in support of the application at paragraph - 3. If it were to be so, decree holder’s claim can only be against such of those persons who claim to represent the estate of the deceased Smt.Rani Sidhan and Dr.T.C.Sidhan and even according to the decree holder, it is Mrs.T.C.Vrindadevi and Dr.Maya Gopinath, sisters of Dr.T.C.Sidhan i.e., proposed respondents-5 & 6 who are said to have given up their claim in lieu of receiving consideration of Rs.3 crores, As such, decree holder, at the most, would be entitled to proceed against them subject to establishing the fact that they have received the said consideration in lieu of giving up their right in respect of the estate of deceased Dr.T.C.Sidhan only. In other words, no other person/s other than those persons who claimed right in the estate of deceased Dr.T.C.Sidhan would be entitled to be roped in the execution proceedings in question. As such, impugned order to the extent of dismissing the application in its entirety cannot be sustained and the application filed under section 50 CPC deserves to be allowed in part namely, to permit decree holder to implead respondents 5 & 6 as judgment debtors -1 and 2.
10. Insofar as, prayer made in W.P.No.29174/2014, it would not detain this Court for too long to allow the said petition by granting the prayer made therein for two reasons. Firstly, in the light of suit against said judgment debtor No.2 having been dismissed and secondly, the decree holder himself having admitted in the affidavit filed in support of the application to bring respondents 3 to 7 on record to the effect that respondents-5 & 6 namely, Smt.Vrindadevi and Dr.Maya Gopinath had given up their right in the estate of deceased Dr.T.C. Sidhan by receiving consideration amount. In other words, said proposed respondents-5 and 6 alone being parties to the execution proceedings against whom decree holder is entitled to proceed with by continuing the execution proceedings against judgment debtor No.2 i.e., writ petitioner in W.P.No.29174/2014 cannot be sustained. Accordingly, point Nos.1 and 2 are answered.
Hence, I proceed to pass the following:
ORDER (1) W.P.No.39806/2014 is hereby allowed in party and order dated 19.04.2014 passed by Senior Civil Judge, Madikeri dismissing I.A.No.2 is hereby set aside and I.A.No.2 is allowed in part and proposed respondents-5 and 6 are ordered to be brought on record as judgment debtors 1 and 2 in Ex. Petition No.19/2011.
(2) W.P.No.29174/2014 is allowed and execution proceedings i.e., 19/2011 filed by the decree holder against judgment debtor No.2 is hereby quashed.
(3) It is made clear that during the pendency of the execution proceedings, if the decree holder is able to demonstrate or prove that any other persons or persons would also be entitled to represent the estate of deceased Dr.T.C.Sidhan, decree holder would be at liberty to file necessary application in that regard and executing Court in such an event shall examine the said application on merits and in accordance with law and necessarily after issuing notice to such proposed respondent/s.
(4) Contentions of both parties in the execution proceedings are kept open to be urged in the pending execution petition.
SD/- JUDGE DR/SP